Munger v. Baker 65 Barb. 539

Munger vs. Baker.

The rule has long been settled that if a person commits a willful and malicious trespass upon the property of another, under circumstances involving unavoidable injury to persons and property, he is responsible to any person injured by such trespass. It is not necessary that he should intend to do the particular injury which ensues.

The defendant secretly, and with the wanton and malicious purpose to injure and destroy the property of a railroad company, and obstruct the running of trains upon its road, pulled out, removed and threw away the pins used in coupling together the cars of a train, whereby the cars were uncoupled, and the plaintiff, an employee of the company, and whose duty it was to hitch and couple cars as required, sustained an injury to one of his hands. Held that such uncoupling of the cars, was an unlawful interference with the cars, by the defendant, and obviously designed for mischief, and involved naturally, if not necessarily, just such consequences as did ensue from the unlawful act. That the defendant must have known that some one might be injured by such act, and was, upon this principle, liable for the consequences to any one so injured by his willful trespass.

Held, aka, that a charge to the jury that if the defendant took the pins out of the cars, and, in the ordinary use and management of the train, the plaintiff while attempting to couple the cars, and without any want of care or attention on his part, or on the part of any person in charge or management of the train, sustained an injury by reason of such removal of the pins, the defendant was liable to him in damages, was substantially correct and sound.

The rule on this subject laid down by Bronson, J., in Vanderiburgh v. Truivs, (4 Nenio, 466,) approved.

The case of Ryan v. The New York Central Railroad Company, (35 N. Y. 210,) and other cases to the same effect, distinguished from the present, and declared to have been cases of negligence, or causes arising upon contract, where the question was, what was the proper rule of damages. They do not apply to cases of willful wrongs.

THIS action was brought to recover damages claimed by the plaintiff to have been suffered or sustained by him by injury to one of Ms hands, in consequence of the pulling out of the coupling-pins which fastened together certain railway cars, used by the Erie Railway Company.

The plaintiff was an employee of said railway company, and it was Ms duty to hitch and couple cars as required; and in the ordinary discharge of his duties at the time and place stated, he received the injury for *540which the action was brought, by reason of the uncoupling by the defendant of some of the cars of the railway company standing oh a side track, near the defendant’s premises, and composing part of a train of eighteen loaded cars so standing and left standing on the said track, over night.

. The complaint charged, and the evidence tended to prove, that the defendant, at the time,- &c., secretly and with the wanton and malicious purpose to injure and destroy the property of the said railway company and obstruct the running of trains upon said railway, pulled out, removed and threw away the pins used in coupling together the cars of said t-raim The cause was tried at the Wyoming circuit. The defendant’s counsel requested the court to charge the jury that if they found that the defendant uncoupled the cars at a time when no engine was hitched to them, and departed, and subsequently an engine was hitched to the cars by the company or its employees, and that the plaintiff was injured in the act of coupling the cars together, which were uncoupled by the defendant, by reason of the cars being put in motion by-the engine, then the defendant was not liable. The court refused so to charge, and the defendant’s counsel excepted.. The defendant’s counsel further requested the court to charge the jury that if they found the actual injury to the plaintiff was inflicted by the two cars striking together, which were put in motion by an engine hitched to the cars by the railway company or its employees, the defendant was not liable. The court refused so to charge, and the defendant’s counsel excepted. The counsel for the defendant further requested the court to charge the jury that if the injury to the plaintiff was caused by the combined act of the plaintiff in endeavoring to couple the cars, and the car by the motion imparted to it by the engine, the defendant was not liable. The court refused so to charge, and the defendant’s counsel duly excepted. *541The jury found $400 for the plaintiff. Judgment was rendered thereon, and the defendant appealed.

Thos. Corlett, for the appellant.

I. The facts in the case, so far as the questions to be considered by this court are concerned, are not disputed. It is not pretended that the uncoupling of the cars by the defendant, by taking out and throwing away the coupling-pins, inflicted this injury upon the plaintiff. The cars were stationary at the time the pins were taken out; and no engine was hitched to the cars. The hand of the plaintiff could not, therefore, be injured in the way claimed, except by new agencies which should set the cars in motion, and by such motion causing the ends of two cars to strike together. It is manifest, therefore, that this injury was not the natural result of the throwing away the pins or uncoupling the cars. In the language of Justice Hunt, in Ryan v. The New York Central Railroad Co., (35 N. Y. 212,) “was this injury to the plaintiff to be anticipated the moment the cars were uncoupled V How can it be said that such a result was at that time to be anticipated % What possible natural connection is there between uncoupling stationary cars with no engine hitched to them, and the subsequent injury to the plaintiff by the striking together of two cars put in motion by an engine afterward attached to the cars ? The very most that could at that time have been anticipated would be the leaving behind of the uncoupled cars, on the engine being 'hitched to the front one, or that delay would ensue by the time necessarily spent in effecting the coupling; or that new pins would have to be provided in place of those thrown away. It does not strengthen the plaintiff’s position to argue that in this case the injury actually happened, and that it would not have happened if the defendant had not uncoupled the cars; because the fact that it did happen does not prove that it naturally resulted from the uncoupling. *542The test is, “was such an injury to be anticipated as a natural consequence the moment the cars were uncoupled and before the injury happened?” For all the cases agree that damages cannot be recovered unless they, naturally flow from the act complained of. And that what does naturally flow from the act complained of must be determined, not by what actually happens, but what might naturally be expected to result from the act, and which is its logical result. The old “squib” case of Scott v. Shepherd, reported in 3 Wilson, 403, turned upon the question that the act was the continuous one of the defendant until the squib exploded and put out the plaintiff’s eye. That and the like class of cases are fully discussed in Ryan v. The N. Y. Central Railroad Co., (35 N. Y. 210.) The same doctrine here contended for is recognized and re-asserted in Loop v. Litchfield, (42 N. Y. 351,) where the injury resulted from the bursting of a carriage axle. The court say, on pages 359, 360: “The bursting of the wheel and the injury to human life was not the natural result or the expected consequence of the manufacture and sale of the wheel; and the court make a distinction between that case and the case of Thomas v. Winchester, (6 N. Y. 397.) That case was where a dealer in drugs carelessly labeled poison as innocent medicine, and the case turned upon the ground that the injury of some one by poison was the natural and probable consequence of the act, and could be anticipated the moment the package was delivered. Crain v. Petrie, (6 Hill, 522,) was an action for fraud in the sale of sheep; the sheep being sold to a butcher and turning out to be diseased, the butcher’s customers refused to buy meat from him, and he was thereby damaged. The court held that such damages were not the natural consequences of the fraud, and that for such damages the plaintiff could not recover. The same rule is illustrated in cases arising in contract. See Story v. The N. Y. & Harlem R. R. Co., (6 N. Y. 85,) *543where the court held that the sums for which sub-contracts were let could not be proved) to show damages for the breach of the principal contract, such damage neither being natural nor proximate. All the cases agree upon this rule, and the above are only cited as illustrations of the hundreds of cases decided. The extreme cases reported in the books do not in any way sustain the plaintiff’s position. In Passinger v. Thorburn, (34 N. Y. 634,) where the defendant sold cabbage seed, warranting them to be Bristol cabbage seed, the court held the plaintiff to be entitled to recover the" value of a crop of Bristol cabbages, deducting expenses, &c. That case is regarded as having gone to the extreme limit, but the court put its decision upon the express ground that such damages were the natural and necessary result of the breach, and that the result could be easily and naturally foreseen at the time of the breach. So in the case of Milburn v. Belloni, (39 N. Y. 53,) where coal dust was sold to be manufactured into brick, with a warranty that it was free from soft coal dust; damages were sustained upon the express ground that they were the natural consequence of the breach. It is true that some confusion has arisen in some of the cases which perhaps may have resulted in a wrong application of the acknowledged rule in the disposition of individual cases ; but they all agree that the injury must be the natural result of the act. And no case can be found which holds or intimates that any result is to be deemed natural which actually happens, whether such result was to be expected at the time of the doing of the act, and before the happening of" the injury, or not. But in order to sustain this verdict it will be necessary for the court to go the whole length, and to decide the broad proposition, that whatever injury happens, which would not have happened if the act had not been done, the wrongdoer is liable for in damages, whether such injury was to be expected, as it looked immediately after the act was *544committed, or not. In other words, the liability will not depend upon what naturally flows from the act, but from what actually happens. It is needless to say that if the court go this length there is, and can be no rule on the subject. Each case will be arbitrarily disposed of without reference to any rule, but only with reference to what happens.

II. But it is not sufficient that the injury be the natural result of the act complained of; it must also be the proximate or immediate cause of the injury. In other words, there must not be another cause which produces it. And it certainly cannot be said that the uncoupling of these cars was the immediate or proximate cause of this injury. If the plaintiff in the discharge of his duties, without negligence on his part, had stumbled over the coupling-pins, wrongfully thrown away by the defendant, and fallen and injured himself, it might be said that, inasmuch as the defendant placed the pins there which the plaintiff fell over, and thereby hurt himself, the defendant’s act was the proximate or immediate cause of the injury; or if the plaintiff, in the discharge of his duties, was walking on top of the uncoupled train without knowing of the uncoupling, and should fall through an opening between the uncoupled cars, created by the act of the defendant in uncoupling,- and thus receive an injury, it might be said that the injury was the immediate result of the defendant’s act, because the injury in the two last cases supposed, would be the proximate result of the act complained of. But such is not this case; for here new agencies had to be brought into requisition with which the defendant had no connection; which new agencies, to wit, the hitching on of the engine and moving of the cars by the engine after the hitching, in connection with'the act of the plaintiff, produced the injury; in other words, were the immediate and proximate cause of it. The injury was the result of two cars *545striking together which were put in motion by the agencies with which the defendant had nothing to do.

That accidents may sometimes happen in coupling cars together, or that they are more liable to happen when they come together rapidly than when they come together slowly, in no way aids the plaintiff’s position; for in neither case can it be said that the striking together of these two cars, and the injury to the plaintiff, were the immediate result of the uncoupling, or that the uncoupling was the proximate cause; and even if it should be assumed that the uncoupling itself rendered it necessary to move the cars together for the purpose of connecting them, it would by no means follow that a person would be injured thereby. The question as to whether an injury would or would not occur, would rest upon a variety of contingencies, which could not be anticipated by any one at the time of the uncoupling. (Ryan v. The N. Y. Cent. R. R. Co., 35 N. Y. 210. Hicks v. Foster, 13 Barb. 663.) That was an action of slander, in which Marvin, J., delivered the opinion of the court. He says, on page 366: “That the damages must be proximate.” The same rule is discussed in the case first above cited. And in the squib case, above cited, it was assumed, all the way through, that if new voluntary agencies intervened before the injury, the plaintiff could not recover, upon the ground that such new agencies would be the proximate cause of the injury and not the throwing. In this case it is not pretended but that new voluntary agencies were the immediate cause of the injury.

III. The question as to whether the defendant was actuated by malice or not, is of no materiality. The injury complained of must be the necessary and proximate result of the act, whether it be malicious or negligent. In both cases the damages must be natural and proximate ; and the signification of those terms is the same in both cases, and also their limit, The only difference *546would be that in case of malice, exemplary damages might be given in proper oases, but the question as to whether the real damages are too remote to form a basis of recovery, is to be determined in both oases by the same rules. Besides, neither the charge, nor the refusals to charge, assume that there is any distinction, but proceed upon the opposite assumption. The question as to whether the damages are sufficiently natural and proximate to entitle the plaintiff to recover, is precisely the same, whether the defendant acted maliciously or negligently. The only distinction is that when the right to recover is once established, the amount in case of negligence would be limited to the actual injury; but where there is malice, the jury may add such a sum to the real injury as in their judgment the degree of the defendant’s malice may require. But in both cases a cause of action must be established by the same kind of evidence. In Hicks v. Foster, (13 Barb. 663,) the court, at page 666, recognised-the rule here stated, by treating exemplary damages as only capable of being given after a valid cause of action, within an established rule, has been proved. It is a rule allowing only an increase of damages. There must be real damages under an established rule of law upon which they are based.

IY. Ho precedent can be found in the books for any such recovery. This itself is almost conclusive evidence that such damages cannot be recovered. (The People v. Clarke, 10 Barb. 143. Castigan v. The Mohawk & Hudson R. R. Co., 2 Denio, 609.) The rule as to the extent of the defendant’s liability must be limited somewhere. If this verdict is upheld everything is afloat; it will be impossible for any one to anticipate the extent of his liability or the nature of it until after it happens; whether vigilance or foresight could have anticipated it or not. The liability in all cases would depend not upon what seemed natural or proximate at the time of the apt, but upon what actually happened afterward.

*547V. The effect of the judge’s charge as given in the light shed upon it by the subsequent requests to charge, was to submit to the jury a question of law. That charge, in connection with the subsequent requests and refusals to charge, left to the jury the decision of the law of the case. In other words, the jury were, in effect, told that if they found, in point of fact, that this injury would not have happened but for the uncoupling, the defendant was liable, without regard to the question whether such injury was the natural or proximate result of the defendant’s act or not. It may be said, in this connection, that the only possible motive the defendant had, was to punish the railway company for obstructing his crossing, even if instigated by malice. There is no evidence tending to show malice against any one else ; nor could malice against any one else be assumed on the facts proved. It need not be suggested that cars, whether coupled or uncoupled, standing upon a railway track are not per se dangerous to life or limb. There is nothing in the nature of cars making them dangerous, and therefore no argument can be drawn against the defendant, by likening this case to the placing of firearms or dangerous weapons in the hands of unskillful persons, or of turning wild and dangerous animals in the midst of crowds of people. All the elements which have been held to make such parties liable for such acts are here wanting. This case falls within settled rules, and must be controlled by them.

C. T. Bartlett, for the respondent.

The act of the defendant in removing the pins was wrongful and malicious; he was a willful trespasser, and is responsible for all the consequences resulting from his acts—one of which is the injury sustained by the plaintiff. Had not the pins been removed, the control of the engine over the cars would have been perfect, and no injury would have occurred.

*548It is a well established rule “ that in cases of illegal, or mischievous conduct, the disposition of courts is to make the party in the wrong, liable for injurious consequences flowing from the illegal act, although very remote.” (Sedg. on Dam. 90.) “And in cases of reckless or mischievous acts which are likely to prove injurious to others, or where damages are not claimed, the party in the wrong is frequently made answerable for consequences very remote from the original act.” {Id. 81.) In Dams v. Garrett, (19 Eng. C. L. Rep. 716,) the defendant undertook to carry a quantity of the plaintiff’s lime in his barge, from Medway to London; and in going to London deviated from the usual course, and during the deviation a tempest wet the lime, whereby it set fire to the barge, and the whole was destroyed. It was held that the cause of the plaintiff’s loss, to wit, the deviation from the usual course, was sufficiently proximate to entitle the plaintiff to recover, although the immediate cause of the loss was the wetting of the lime, by the tempest. In that case, the wrongful act was the deviation from the usual course, and the injurious consequence was the loss of the lime, by first getting wet in the tempest, and secondly, from its natural quality setting fire to the barge; and it was held not to be too remote, although it was contended that there was no natural con-, nection between the wrongful act, to wit, the deviation, and the loss of the lime, as the same accident might have happened in the usual course. Tindal, Ch. J., said: “No wrongdoer can be allowed to apportion or qualify his own wrong; as a loss has actually happened, whilst his wrongful act was in operation and force, and which is attributable to it, he cannot set up as answer to the action, the bare possibility of a loss, if his wrongful act had never been done.” The above was an action pn contract. In 17 PicJc. 78, ‘ ‘ it was held in an action for trespass, for digging into a river bank, near a dam, that the plaintiff might recover for the injury consequential on the digging, which *549consisted of the damage done by a flood, that occurred three weeks after, and swept away several acres of land and other property.” The court saying that the plaintiff was entitled to recover all the damage of which the injurious act was the efficient cause. It was no defence to say that the flood was the proximate cause of the injury, as the digging had put the river bank in such a condition as to make it unable to withstand the flood. In an action for trespass for breaking down and destroying part of a mill-dam, damages were assessed for the cost of repairing the dam, and also for the interruption to the use of the mill, or diminution of profits, occasioned by the water flowing through the break in the dam, and by that means falling too low for the working of the mill. (8 Piclc. 356.) The defendant’s servant had left his horse and cart in the public street, where children might be playing. The plaintiff, who was a child six or seven years old, and other children, played about the cart; the plaintiff got into it, and another boy led the horse on, and the plaintiff in getting out fell, and the cart wheel ran over his leg and broke it. The plaintiff was held entitled to recover. (Lynch v. Nurdin, 41 Eng. Com. L. Rep. 432.) In the above case the court say: “ The child was a co-operating cause of his own misfortunes, by doing an unlawful act.” The defendant has been the real and only cause of the mishap. In the famous “squib case,” the first thrower of the squib was held responsible, though it had passed through the hands of two other persons before it struck the plaintiff, and inflicted the injury for which the action was brought. (Scott v. Shepherd, 2 W. Black. 892.) In the case of Tarleton v. McGurley, (if. P. Cas. 205,) it was held by Lord Kenyon that an action lay for firing on negroes on the coast of Africa, and thereby deterring them from trading with the plaintiff, so that he lost their trade. In the case of Vandenburgh v. Truax, (4 Denio, 464,) where the defendant pursued, with a pick-axe, a *550negro boy from the street into the plaintiff’s store, and the boy in his flight injured the plaintiff’s goods, it was held the defendant was liable. Bronson, J., there says: “The injury sustained by the plaintiff was not the necessary consequence of the wrong done by the defendant, nor was it so in the case of the -lighted squib ; but in both instances the wrong was of such a nature that it might very naturally result in an injury to some third person.” The case of Guille v. Swan, (19 John. 381,) which may be called the balloon case, is to the same effect. So the following cases are authority for the same rule: (Percival v. Hickey, 18 John. 257 ; 8 Wend. 469 ; Bullock v. Babcock, 3 id. 391.) The law presumes “that one who does a wrongful act, intends all the consequences which naturally result from it.” (1 Greenl. Ed. § 18. 3 Bouv. Inst. 348. 3 Maule & Sel. 14, 15. 16 Wend. 649. 3 Metc. 469. 2 Seld. 307.) And he is still responsible, though perhaps not to the same degree, when he does a legal act in such a careless and improper way that injuries to third persons may naturally and directly result from his act. (4 Denio, 464. 19 Wend. 345, 346. 3 Maule & Sel. 14, 15. 2 Starkie' s Ev. 526, Am. ed. 1837. 5 Maule & Sel. 198. Broome' s Legal Max. 168, 169, 1st ed. 41 Eng. Com. L. 422, 425. 24 id. 272. 29 N. Y. 591. 18 id. 79, 84. 17 id. 104. 44 id. 490. 2 Keyes, 169.) “If any blame is imputable to the defendant, though he had no intention of injuring the plaintiff or any other person, he is liable for the damages sustained.” “And where the act complained of is one greatly to be censured, of evil example, and likely, from its very nature, to be fraught with injurious results, although not of so flagrant a character as to warrant vindictive damages, the law will not attempt too nicely to limit the amount of reparation, but will pursue the wrongdoer with severity, and extend the line of relief so as to embrace all the consequences of his conduct, although somewhat remote from the original *551transaction.” (Sedg. on Dam. 84.) “If one puts in motion a dangerous machine, or lets loose a dangerous animal, and leaves to hazard what may happen, and mischief ensues to any one, he is liable.” (Lord. Ellenborough, in Leame v. Bray, 3 East, 596.) The correctness of the above rule cannot be questioned; that this case is one where it can be properly applied seems clear. The defendant could have easily foreseen the consequences which followed his act, and he is responsible for them. The manner of making up trains, of connecting together the cars, were well understood by the defendant, as well as the great danger to life and property which any interference with the train would naturally and almost inevitably produce. The act of the defendant in removing the pins, cannot be considered otherwise than willful. This loaded train from which he pulled the pins, and the place where he pulled them, were several rods west of his crossing. It is established by the verdict of the jury that the act of the defendant was wrongful, and that the injury to the plaintiff naturally resulted from that wrongful act. There can be no pretence for saying that the injury resulted from the want of care or attention on the part of the plaintiff, or those associated with him in the use or management of this train of cars, the jury having found directly that there was no such want of care or attention. The injury being sufficiently connected with the defendant’s wrongful act in removing the pins, it is no defence to say, “that when he removed them no engine was attached to them, and he departed, and subsequently an engine was attached to them, which put in motion the- cars and then the injury occurred to the plaintiff.” That an engine would be hitched to them, and motion imparted to them, was one of the things which the defendant must have foreseen, for he knew that that was the only way by which they were moved over the track. The motion imparted to the cars could have been reversed, slacked or *552perfectly discontinued by the engine which imparted it. It was as completely under the control of the engine as the movements of the human body are under the control of the human will. The motion imparted to the cars was essential in order that the coupling might be made : it could only be made while the cars were under motion. The act of the defendant deprived the engine of the control over the motion of the cars) which but for that act would have been perfect. “ The law imposes the duty upon every one to avoid acts in their nature dangerous to the lives of others.” (Thomas and wife v. Winchester, 3 Seld. 397.) This was an action brought to recover for injuries sustained by Mrs. Thomas, from the effects of the extract of belladonna, administered by her physician, by mistake, for the extract of dandelion. The defendant was a chemist, doing business in New York, and as such prepared the belladonna for market, put it in a jar,'and by mistake put on a label marked extract of dandelion. After passing through several dif • ferent hands it came into the hands of the physician, who supposing it to be the extract of dandelion, administered some of it to Mrs. Thomas, who by reason thereof was greatly injured, and for such injury the action was brought, and the court held the defendant liable. The injury sustained by the plaintiff in this action is not rendered too remote to sustain a recovery because separated from the wrongful act by the intervening events, to wit, hitching the engine to the cars and imparting motion to them—as the defendant must have known that they would naturally follow. Suppose that the defendant instead of removing the pins, had pulled out the spikes holding the rail in its place, or had removed a rail, or placed an obstruction on the track, and a train had been thrown off, can it be doubted that he would be liable % If A. enters your carriage-house, removes the nut securing the wheel upon the axle, afterward your horse is hitched to the carriage and you go out to *553ride, having no knowledge of the nnt; the wheel runs off; your carriage is overturned and broken; you are injured; your horse is tightened and runs away and is killed; would not the removal of the nut be the direct cause of the injury, and would not A., who removed it, be liable ? The defendant has no reason to complain of the charge of the court; he is not aggrieved by it, or by the refusal to charge, as requested by his counsel. There is no error in the charge, or in the refusal to charge as requested, of which the defendant can complain.

The jury had a right to find from the evidence that the act of the defendant was a trespass, greatly to be censured, of evil example, and likely from its very nature to result in consequences injurious to others ; that it was the cause of the plaintiff’s injury; that the plaintiff and those associated with him in the use and management of the train, in making this coupling, were without fault; and their verdict ought not to be disturbed. “The jury were not bound,” as an eminent English judge remarked in a recent case, “to weigh in golden scales how much injury a party has sustained by a trespass.” (8 Mees. & Welsb. 575.)